SC shuts criminal case against 30 armymen in civilian killings in Nagaland

The Supreme Court on Tuesday closed criminal proceedings against Army personnel involved in a botched counter-insurgency operation in December 2021, which killed 13 tribals in Nagaland’s Mon district, even as the court maintained that if Centre grants sanction for their prosecution, criminal proceedings will be revived.
The top court’s order came as a relief to 30 Army personnel, including a Major, on a petition filed by the wives of three officers who questioned the authority of the Nagaland government to initiate criminal proceedings in violation of Section 6 of the Armed Forces Special Powers Act, 1958 (AFSPA). Under this law, prior sanction by Centre is required to initiate any criminal proceedings against Army officers.
The Centre had rejected the grant of prosecution sanction against the personnel on February 28, 2023. On Tuesday, the Supreme Court bench of justices Vikram Nath and PB Varale, cited this ground alone to allow the petitions filed by Rabina Ghale, Tulsi Devi and Anjali Gupta.
The bench said, “The proceedings pursuant to the impugned FIRs shall remain closed. However, in case sanction is granted at any stage under Section 6 of the AFSP Act, 1958, the proceedings pursuant to the impugned FIRs may continue and may proceed in accordance with law and be brought to a logical conclusion.”
Quashing the proceedings against the accused personnel, the bench said, “In view of the specific bar contained in Section 6 of the AFSP Act, 1958 which provides that no prosecution, suit, or other legal proceedings can be instituted except with the previous sanction of the Central government with respect to the exercise of any power conferred under the said Act, the proceedings based on the impugned FIRs cannot continue any further…the proceedings arising from the impugned FIRs deserve to be quashed.”
In an interim order in July 2022, the apex court stayed the criminal proceedings, and set out to examine Nagaland’s objections to dismiss the appeals. In the interregnum there was another development as the state challenged the Centre’s decision declining prosecution sanction, in a separate petition before the top court.
Calling for Centre’s response, a bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud issued notice on the petition and admitted the appeal on April 16 .
The bench said, “We make it clear that if such situation arises at any stage, of sanction being granted under Section 6 of the AFSP Act, 1958, the proceedings pursuant to the impugned FIRs would continue according to law and may take its own course as provided under law.
The state led by advocate general KN Balagopal informed the bench that during the trial before a Nagaland court, the Army had sought the release of its officers to initiate court martial proceedings against them. While the state demanded the court to pass an order directing disciplinary action to be initiated against the officers, the bench turned down the suggestion. Such an action, the court said, would be at the sole discretion of the Army. However, it held, “The concerned wing of the Armed Forces would be at liberty to take or not to take any disciplinary proceedings against its officers.”
Acting on information that about a planned sabotage attack by armed insurgents, 30 personnel from 21 PARA(SF) laid an ambush near Oting village on December 4, 2021. The unit led by Major Ankush Gupta attacked a Bolero vehicle, killing six men from whom one banned single barrel rifle and seven machetes were recovered.
When the locals found the six bodies, they attacked the army personnel, claiming the dead men were not insurgents. The villagers killed one paratrooper, chopped the finger of Major Gupta and destroyed Army vehicles. In the retaliatory fire by Army personnel, seven civilians were killed. The Army had lodged a counter-FIR over the murder of one of their jawans.
A Special Investigation team (SIT) probe led by the Range Inspector General of Nagaland Police had recommended criminal prosecution of the 30 Army personnel for offences under the Indian Penal Code, namely Section 302 (murder), Section 307 (attempt to murder), Section 326 (causing hurt), Section 201 (destruction of evidence), read with Section 120B (criminal conspiracy), besides recommending disciplinary proceedings to be initiated against the personnel.
The petition filed by Major Gupta’s wife and others through advocate Astha Sharma said, “The manner in which the SIT has conducted its investigation and arrived at its findings, and on the basis of which a charge sheet has also been filed, portray and project a grim situation on ground.”
Seeking quashing of the FIR and the SIT report of March 24, 2022, the petitioner told the court that SIT disclosed personal information about the Army personnel making their family members “sitting targets”.
Balagopal maintained that the incident was a clear case of unprovoked, cold-blooded murder against unarmed, innocent Naga tribals. He had urged the court that since the process of judicial review against denial of sanction was pending, the petition ought not to be entertained as the earlier order rejecting the sanction is no longer final.